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Spiers v. State

Court of Criminal Appeals of Texas
Jun 29, 1977
552 S.W.2d 851 (Tex. Crim. App. 1977)

Summary

holding that, to enhance the punishment of a felony offense, the State must prove that the prior felony was a "final" conviction

Summary of this case from Ex parte Pue

Opinion

No. 53248.

June 29, 1977.

Appeal from the 115th Judicial District Court, Marion County, Virgil E. Mulanax, J.

R. G. Shivers, Jefferson, for appellant.

Tony Hileman, County Atty., Jefferson, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.


OPINION ON APPELLANT'S MOTION FOR REHEARING


Appellant's motion for rehearing is granted. Our prior PER CURIAM opinion is withdrawn.

Appellant was convicted of aggravated assault. The punishment, enhanced by two prior felony convictions under V.T.C.A., Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

In support of the enhancement provisions of the indictment the State offered in evidence certified copies of two prior convictions in the State of Mississippi. One conviction was for burglary in cause number 2,658. The other was for assault with intent to commit murder in cause number 2,895. Although appellant admitted these two prior convictions, the burden was upon the State to prove that they were each final convictions. The record reveals that in the burglary conviction appellant's sentence was suspended. There is no showing that this suspended sentence was ever revoked. Accordingly, there is no proof that the burglary conviction was a final conviction. Absent such proof such conviction cannot be used for enhancement. Arbuckle v. State, 132 Tex.Crim. R., 105 S.W.2d 219; Fetters v. State, 108 Tex.Crim. R., 1 S.W.2d 312; Brittian v. State, 85 Tex.Crim. R., 214 S.W. 351.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


Summaries of

Spiers v. State

Court of Criminal Appeals of Texas
Jun 29, 1977
552 S.W.2d 851 (Tex. Crim. App. 1977)

holding that, to enhance the punishment of a felony offense, the State must prove that the prior felony was a "final" conviction

Summary of this case from Ex parte Pue

holding that, to enhance the punishment of a felony offense, the State must prove that the prior felony was a "final" conviction

Summary of this case from Ex parte Pue

holding that State bears burden of proving probation revoked before using conviction resulting in probation to enhance punishment

Summary of this case from Silva v. State

In Spiers, the Court of Criminal Appeals stated, "Although appellant admitted these two prior convictions, the burden was upon the State to prove that they were each final convictions."

Summary of this case from Harrison v. State

In Spiers, the Texas Court of Criminal Appeals noted that although the appellant admitted two prior convictions, the burden was on the State to prove the convictions were final.

Summary of this case from Tucker v. State
Case details for

Spiers v. State

Case Details

Full title:George Earl SPIERS, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas

Date published: Jun 29, 1977

Citations

552 S.W.2d 851 (Tex. Crim. App. 1977)

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